Kim Strickland v. John Jabe , 638 F. App'x 179 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6229
KIM M. STRICKLAND, Personal Representative and
Administrator of the Estate of Aaron A. Cooper,
Plaintiff - Appellant,
v.
HEATHER HALSEY, Corrections and Floor Officer, Red Onion
State Prison; TRACY GILMORE, Building Sergeant, Red Onion
State Prison; BRIAN MEADE, Corrections Officer, Red Onion
State Prison; ROBERT MULLINS, Corrections Officer, Red Onion
State Prison; FIRST NAME UNKNOWN BALL, (Female) Corrections
Officer, Control Booth, Red Onion State Prison; THREE
UNKNOWN CORRECTIONAL OFFICERS,
Defendants – Appellees,
and
HAROLD W. CLARKE, Director, Virginia Department of
Corrections; JOHN JABE, Director, Operations, Virginia
Department of Corrections; JOHN S. GARMAN, Regional
Director, Virginia Department of Corrections; TRACY RAY,
Warden, Red Onion State Prison; RICHARD ROWETTE, Assistant
Warden and Incident Commander, Red Onion State Prison;
LESLIE FLEMING, Major, Chief of Security, Red Onion State
Prison; TRAVIS MCCOY, Lieutenant, Shift and Watch Commander,
Red Onion State Prison; TONY ADAMS, Sergeant, Instructional
Investigator, Red Onion State Prison; JAMES BENTLEY,
Intelligence Officer, Red Onion State Prison; J. RICK
WIANDT, MSA, Investigator, Inspector General, Virginia
Department of Corrections; L. FLEMING (male) Lieutenant, Red
Onion State Prison,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:12-cv-00019-JPJ-PMS)
Argued: March 24, 2015 Decided: August 19, 2015
Before WYNN, FLOYD, and HARRIS, Circuit Judges.
Affirmed in part; reversed and remanded in part by unpublished
per curiam opinion.
Mary Lynn Tate, TATE LAW, PC, Abingdon, Virginia, for Appellant.
Henry Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
This lawsuit arises from the murder of an inmate, Aaron
Cooper, by another inmate, Robert Gleason, at a maximum security
prison in Virginia. Kim Strickland, the personal representative
and administrator of Cooper’s estate, brought suit under 42
U.S.C. § 1983, alleging that a sergeant (Tracy Baird) and three
corrections officers (Heather Halsey, Brian Meade, and Robert
Mullins) violated the Eighth Amendment by being deliberately
indifferent to Cooper’s safety. In support, Strickland asserts
that the defendants took no measures to prevent Cooper’s murder,
despite knowing that Gleason had killed another inmate and that
he threatened to kill again. She also asserts that the
defendants actively facilitated Cooper’s murder by, among other
things, agreeing not to search Gleason for the murder weapon in
exchange for Gleason providing them certain favors.
On appeal, we must decide whether the district court
correctly held that qualified immunity protects the defendants
from Strickland’s § 1983 claim. For the reasons set forth
below, we agree that Baird and Halsey are entitled to qualified
immunity. On the other hand, disputed issues of material fact
exist as to Meade’s and Mullin’s involvement in the murder.
Accordingly, we affirm as to Baird and Halsey, and reverse and
remand as to Meade and Mullins.
3
I.
Robert C. Gleason Jr. first entered prison in 2007 after
receiving a life sentence for murder. 1 While serving his
sentence at Wallens Ridge State Prison, Gleason strangled his
cellmate, Harvey Watson Jr., to death. During a court
appearance for Watson’s murder, Gleason declared that he would
kill again if he were not executed. According to a Red Onion
sergeant present in the courtroom at the time, Gleason said, “it
might be one of these guys next time” and pointed to several
prison officers present in the courtroom. J.A. 66-67. Despite
this outburst, Gleason was not sentenced to death. Instead, he
was transferred to Red Onion State Prison (Red Onion), a
Security Level S facility housing Virginia’s most violent and
dangerous inmates.
After arriving at Red Onion, Gleason set about making good
on this threat to kill again. As his target, he settled on
Aaron Cooper, a 26-year-old inmate serving a sentence of
approximately 34 years for a series of robberies and
1
In reviewing de novo the district court’s order granting
summary judgment to the Defendants, we “view the facts and all
justifiable inferences arising therefrom in the light most
favorable to” Strickland, as the nonmoving party. Libertarian
Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013). The
following statement of facts conforms to this standard.
4
carjackings. 2 Gleason testified that he befriended Cooper in
order to gain his trust. Gleason then convinced Cooper to go
along with a plan in which Cooper would fake being strangled by
Gleason in order to bring suit against the prison. Gleason
testified that he told Cooper, “I want you to take a deep breath
so you can pass out so if they do a polygraph test on you if
they ask you did you actually pass out from Mr. Gleason choking,
pulling on the rope.” J.A. 97. But, according to Gleason, “I
made that up. That was never going to happen. That was never
going to happen. I was going to kill him.” J.A. 88. Gleason
wanted to make the Department of Corrections look stupid because
“they kept on saying this is Red Onion, this ain’t going to
happen up here.” J.A. 102. With the help of other prisoners,
Gleason obtained his weapon, a long rope “braided so that way it
wouldn’t break” while in the showers. J.A. 89.
After obtaining the rope, Gleason still needed to find a
way to get close enough to Cooper to use it, no easy feat in Red
Onion, where the prisoners are separated in individual metal
cages even during outdoor recreation time. Gleason took
2 Cooper had been transferred to Red Onion because he set
fire to objects at least twice in order to escape gang violence
at his previous prison. Cooper’s behavior at Red Onion seems to
have been the motivating factor in drawing Gleason’s attention.
J.A. 106 (Gleason targeted Cooper because he “messed up and
started running his mouth” and told “lies.”).
5
advantage of a widespread system of favor-trading between guards
and inmates in order to get close to Cooper. Gleason says that
he made arrangements with Halsey, Meade and Mullins to
effectuate his plan. According to Gleason, prisoners would
often arrange to stay inside their cells during recreation time
in exchange for other favors from guards. Guards participated
in this exchange because they were saved the work of bringing
the prisoner onto the recreation yard. To execute his plan to
kill Cooper, Gleason says that he arranged with Halsey and Meade
to assign prisoners to the metal cages in the recreation yard so
that Cooper’s and Gleason’s cages would be adjacent. J.A. 91
(“Well, I told [Meade] I’d stay in plus other things, and I
don’t want to get into that.”). According to both Meade and
Mullins, inmates usually chose their own cages. J.A. 230-31
(“They usually just choose their own cage. . . . We’d just
take them to whichever case they went to.”); J.A. 245 (“They
chose. When they come out, they went to the rec, the cage that
they just walked out and went to the cage that they wanted to go
into.”). Halsey and Meade deny an agreement with Gleason
regarding the placement of inmates on that day.
After securing a place next to Cooper in the recreation
yard, Gleason still had to get the rope into the cage. Again,
Gleason testified that he had help in doing so. Before inmates
are brought onto the recreation yard, they are strip-searched by
6
the officers. On the day of the killing, Meade and Mullins
searched Gleason (Halsey was elsewhere at the time). Although
Gleason had the rope in his shirt during the search, Meade and
Mullins did not find it. J.A. 93. Gleason claims that Meade
and Mullins purposefully performed an insufficient search
because of an agreement to provide them with favors. Gleason
also testified that his plan to kill Cooper was common knowledge
among the inmates. J.A. 94 (the inmates “all knew what was
going on.”); see also J.A. 97 (“All of [the inmates] except for
Sparrow”). He also says that the prison officials “all knew
what was going on. And plus Martin [Rodgers] gave them all a
heads-up.” 3 J.A. 94. Meade and Mullins in turn deny any
agreement with Gleason or that they performed an improper
search.
Gleason also testified that Halsey deliberately looked the
other way during the killing itself. According to Gleason,
3An affidavit by Tony Adams, a sergeant at Red Onion,
states that Rodgers “made a statement to us that there were
going to be problems on the recreation yard. He did not
elaborate on the date, time or parties that would be involved
and gave no details or specifics about what he knew or how he
knew this.” J.A. 66. Other affidavits support Adams’s
statement that Rodgers did not provide any actionable
information. See J.A. 69 (“Rodgers provided no specific, exact
or detailed information to staff about anything that was going
to happen on the recreation yard or in any other location.”);
J.A. 72 (“Rodgers was not specific and refused to give
details”).
7
Halsey was in the control tower overlooking the yard in the
moments before he strangled Cooper. Gleason also testified that
Halsey saw him place the rope around Cooper’s neck. J.A. 118.
Then, according to Gleason, “She looked down, that’s when they
all looked up, were inside talking and what not, and I pulled
the rope up and that’s when she shut window and never seen her
again.” J.A. 118. Halsey, however, denies this account, and
instead says she was in another part of the prison during the
killing. 4 According to Travis McCoy, the Warden of Red Onion at
the time, “staffing policy did not require security staff be
present on the recreation yard during offender recreation.”
J.A. 76.
Video evidence shows that Gleason strangled Cooper, walked
away, and then strangled him again. When Halsey went to the
yard to bring the inmates back to their cells, she found
Cooper’s body and radioed Baird, a sergeant at the prison, for
assistance. Although medical assistance was administered, it
was too late: Cooper died at the scene. 5 The Virginia
4
It is undisputed that neither Mullins nor Meade where near
the yard when the killing happened.
5
Gleason was put to death by electrocution on January 16,
2013. Justin Jouvenal, Va. Executes Convicted Killer Who Sought
Death Penalty, Washington Post, Jan. 16, 2013,
www.washingtonpost.com/local/va-executes-convicted-killer-who-
sought-death-penalty/2013/01/16/89802e00-6015-11e2-9940-
6fc488f3fecd_story.html.
8
Department of Corrections later disciplined all of the
Defendants for their roles in Cooper’s death.
Acting as personal representative and administrator of
Cooper’s estate, Kim Strickland brought this action under 42
U.S.C. § 1983, alleging that Defendants violated the Eighth
Amendment of the U.S. Constitution. 6 The district court granted
summary judgment for Defendants on the basis of qualified
immunity. Specifically, the district court found that none of
the four Defendants violated the Eighth Amendment because they
were not deliberately indifferent to a “substantial risk of
serious harm” to Cooper. Farmer v. Brennan, 511 U.S. 825, 834
(1970). This appeal followed.
II.
“Whether a party is entitled to summary judgment is a
question of law we review de novo using the same standard
applied by the district court.” Henry v. Purnell, 652 F.3d 524,
531 (4th Cir. 2011) (en banc). “Summary judgment is appropriate
only if taking the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party,
‘no material facts are disputed and the moving party is entitled
6
Strickland originally brought two additional counts, which
are not on appeal here: Count II, a supervisory liability claim,
and Count III, a civil conspiracy claim.
9
to judgment as a matter of law.’” Id. (quoting Ausherman v.
Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)). Thus, in
this case, we view the facts in the light most favorable to
Strickland.
At the center of this appeal is the district court’s grant
of qualified immunity to all of the Defendants. Qualified
immunity “balances two important interests—the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Put differently, qualified immunity shields “government
officials performing discretionary functions . . . from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
Consequently, a defendant is entitled to qualified immunity
in a § 1983 case if (1) his or her conduct did not violate the
constitutional right at issue or (2) the right was not “clearly
established” at the time of the incident. Pearson, 555 U.S. at
232, 236. Succeeding on either prong is sufficient for
entitlement to qualified immunity, and courts may begin with
either prong. Id. at 234.
10
As set forth below, we agree that Baird and Halsey did not
violate the Eighth Amendment because they did not take any
action or inaction such that a reasonable factfinder could find
that they were deliberately indifferent. We conclude that a
reasonable factfinder could determine, drawing all reasonable
inferences in Strickland’s favor, however, that Meade and
Mullins exhibited such indifference. We also conclude that
Cooper’s Eighth Amendment right in this instance was clearly
established. Accordingly, we will reverse the district court’s
grant of qualified immunity as to Meade and Mullins, but affirm
as to Baird and Halsey.
III.
We begin with the first prong of qualified immunity:
whether the Defendants violated Cooper’s Eighth Amendment
constitutional rights. The Eighth Amendment requires prison
officials to “protect prisoners from violence at the hands of
other prisoners.” Farmer, 511 U.S. at 833. Officials must take
“reasonable measures to guarantee the safety of the inmates.”
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). In other words,
“[t]he government and its officials are not free to let the
state of nature take its course.” Farmer, 511 U.S. at 833.
“The burden is on the prisoner to demonstrate that prison
officials violated the Eighth Amendment, and that burden is a
11
heavy one.” Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir.
2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)).
Not every “injury suffered by one prisoner at the hands of
another . . . translates into constitutional liability for
prison officials responsible for the victim’s safety.” Farmer,
511 U.S. at 834. Instead, the Supreme Court has outlined two
requirements for an Eighth Amendment failure to protect claim.
First, “a prison official’s act or omission must result in the
denial of ‘the minimal civilized measure of life’s
necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337,
347 (1981)). In other words, the denial of the prisoner’s
constitutional rights must be “sufficiently serious.” Id.
Second, the prison official must have a “sufficiently culpable
state of mind,” id., which means the official either
purposefully caused the harm or acted with “deliberate
indifference,” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).
The first requirement is easily satisfied here. Cooper was
murdered by another prisoner. The deprivation of his
constitutional rights is unquestionably “sufficiently serious.”
Whether prison officials acted with “deliberate
indifference” for purposes of the second requirement presents a
closer call. In the Eighth Amendment context, deliberate
indifference “lies somewhere between negligence and purpose or
knowledge: namely, recklessness of the subjective type used in
12
criminal law.” Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105
(4th Cir. 1995). For a prison official to be liable, “the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Farmer, 511 U.S. at 837.
The test is subjective, not objective. Brice, 58 F.3d at 105.
A prison official is not liable if he or she “knew the
underlying facts but believed (albeit unsoundly) that the risk
to which the facts gave rise was insubstantial or nonexistent.”
Farmer, 511 U.S. at 844; see also Rich v. Bruce, 129 F.3d 336,
338 (4th Cir. 1997) (finding that a prison official was not
liable, because he did not actually draw the inference that the
inmate was exposed to a substantial risk of serious harm).
This case, therefore, hinges on whether any of the
Defendants were subjectively aware of the risk of harm to
Cooper, shown either through direct evidence or circumstantial
evidence of actual knowledge. 7 Makdessi v. Fields, __ F.3d __,
No. 13-7606, 2015 WL 1062747, at *5-6 (4th Cir. 2015).
7 A court can use circumstantial evidence to infer that an
official “must have known” of the risk based on “the very fact
that the risk was obvious.” Farmer, 511 U.S. at 842. “In other
words, although the obviousness of a particular injury is not
conclusive of an official’s awareness of the injury, an injury
might be so obvious that the factfinder could conclude that the
guard did know of it because he could not have failed to know of
it.” Brice, 58 F.3d at 105 (citation omitted).
13
Strickland claims the defendants were subjectively aware of
the risk to Cooper because: (i) they knew that Gleason had
killed in the past and that he threated to kill again; and (ii)
they facilitated the murder by, inter alia, failing to properly
strip-search Gleason and recover the murder weapon. As
explained below, we disagree that mere knowledge of Gleason’s
threats rises to the level of deliberate indifference. On the
other hand, taking the facts in the light most favorable to
Strickland, we conclude that failing to adequately strip-search
Gleason for the murder weapon, pursuant to a pre-arranged
agreement, does constitute deliberate indifference. Because
Meade and Mullins were responsible for conducting the search, we
reverse as to them only.
1.
We start with Gleason’s criminal history and his declared
intent to kill again. Strickland argues that Defendants should
have taken more precautions given Gleason’s past murder of
another inmate. The parties dispute whether the defendants were
actually aware of Gleason’s criminal past and the reason for his
transfer to Red Onion. 8 Whether the Defendants knew about
8
Before the district court, Strickland’s counsel conceded
that Mullins, Meade, and Halsey were not formally notified of
Gleason’s declaration that he would kill again. J.A. 160
(Continued)
14
Gleason’s’ past threats is ultimately not dispositive, however.
The relevant question is whether the Defendants subjectively
believed Gleason posed a substantial risk of serious harm to
other inmates, not whether they simply knew he had previously
stated he would kill again. See Farmer, 511 U.S. at 837
(noting that to hold an official liable, “the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference”). In other words, there is no evidence that any
of the Defendants drew the inference that Gleason posed a risk
to other inmates due to his criminal history.
(Halsey); 172S, 172T (“[T]hey weren’t notified in any specific
way of his promise to kill again . . . .”). Only Baird was
briefed about Gleason’s murder of Watson. In contrast, Meade,
Mullins, and Halsey testified that they discovered Gleason’s
past through rumor. See J.A. 284 (Mullins) (“I’d asked
somebody, you know, what he had done, and they told me about the
Wallens Ridge incident.”); J.A. 227 (Meade) (“Just hearsay. I
don’t know if it was true. But an incident that occurred at
another facility.”).
Gleason also testified that Defendants were (at least
informally) aware of his criminal past and declaration to kill
again. J.A. 85 (“In fact up front they were telling COs to look
at it on the Internet. So each one that came by they asked me
about it and I said yeah, I said that. Everybody knew that.”).
In other words, although Meade, Mullins, and Halsey were not
formally told by any prison official to be especially careful
with Gleason, they had at least some reason to believe Gleason
intended to kill again.
15
Here, the undisputed testimony shows that the Defendants
simply did not believe that Gleason was capable of acting on his
threats. Instead, they believed Red Onion’s maximum security
procedures would thwart any efforts to kill again. See J.A. 83
(“And I was like well, you heard what I said in court. He said
this is Red Onion, this doesn’t happen up here.” (Gleason
commenting referring to Tracy Ray, the Warden at Red Onion));
J.A. 102 (“Well, Tracy Ray, the Major, and a lot of the staff
said no one has ever been killed in segregation—first they said
nobody’s ever been killed at Red Onion.”). Gleason instead
sought to make the Department of Corrections look “stupid”
because his threats were not being taken seriously. J.A. 102-
03. Instead, Defendants regarded Gleason as (to the extent a
twice-convicted killer can be) pleasant and respectful. See
J.A. 151 (Halsey) (stating that Gleason was “talkative and
friendly” most of the time and “nice[] and respectful[]); J.A.
227 (Meade) (stating he “[n]ever had any issues with” Gleason).
Regardless of whether the Defendants were aware of
Gleason’s threats then, they did not subjectively infer that
Gleason posed a substantial risk of serious harm. Accordingly,
prong one fails to the extent it is based solely on Gleason’s
past threats.
16
2.
Although the Defendants’ awareness of Gleason’s criminal
history did not demonstrate deliberate indifference, Gleason
also describes a network of favor-trading between guards and
inmates at Red Onion that facilitated the circumstances of his
murder of Cooper. Specifically, Gleason states that there were
two discrete instances of favor-trading that facilitating his
murder of Cooper: (1) arranging with Meade and Halsey the
placement of inmates on the recreation yard such that Gleason
was next to Cooper, and (2) agreeing with Meade and Mullins to
be insufficiently searched prior to entering the recreation yard
so that he could keep the braided rope on his person. Only the
second instance of favor-trading, with Meade and Mullins, rises
to the level of deliberate indifference.
Regarding the first instance of favor-trading, Gleason says
that he arranged with Halsey and Meade to ensure that he was put
next to Cooper on the recreation yard. At the time of this
case’s events at Red Onion, inmates were permitted by the guards
to select their own cages while on the recreation yard. 9
Although Red Onion officials stated in affidavits that inmates
9 An affidavit by the warden states that prison guards are
not permitted to engage in favor-trading with inmates. J.A. 55-
56 (“‘Trading’ and/or doing favors for offenders is against VDOC
policy and is not condoned or tolerated.”); J.A. 58 (affidavit
of assistant warden).
17
are to be placed in cages randomly, that policy, viewing the
evidence in the light most favorable to Strickland, was widely
ignored. See J.A. 63, 76. Gleason seeking to be next to
Cooper, then, was not a particularly notable event at Red Onion.
Strickland presents no evidence that Halsey or Meade were aware
that Gleason’s desire to be next to Cooper posed a substantial
risk of serious harm to Cooper. Indeed, the guards regarded the
cage selection as a normal activity in prison life.
Consequently, Halsey and Meade were not deliberately indifferent
by allowing Gleason to select cages.
Second, according to Gleason, Meade and Mullins then
granted Gleason a much more unusual favor: the right not to be
thoroughly searched prior to entering the yard as required by
prison policy. See J.A. 62 (“It is policy that all offenders
are strip searched when leaving their cells for any reason . . .
.”). Unlike the cage selection policy, there is no evidence in
the record that the strip-search policy was widely ignored by
the guards.
Of course, a merely negligent or careless strip search
would not result in liability under the deliberate indifference
standard articulated in Farmer. But Gleason states that Meade
and Mullins entered into an agreement to avoid a thorough
search, an important safety regulation for inmate safety at the
18
prison. 10 As part of that agreement, they failed to search
Gleason’s long-sleeved shirt, which concealed the braided rope.
Deliberate indifference can be found if the official
“declined to confirm inferences of risk that he strongly
suspected to exist.” Farmer, 511 U.S. at 843 n.8. And as we
stated in Makdessi, “prison officials may not simply bury their
heads in the sand and thereby skirt liability.” 2015 WL
1062747, at *6. Under this standard, Meade and Mullins need not
have known that there was a certain risk of harm to Cooper or
other inmates, of course, only that there was a “substantial
risk of serious harm.” Farmer, 511 U.S. at 834. We conclude
that they would have had reason to know of such risk here.
Surely Meade and Mullins suspected that Gleason wished to avoid
a search in order to bring contraband into the yard – why else
would he want to avoid a search? And even if Meade and Mullins
were not aware of the precise nature of the contraband (i.e., a
rope), absolute certainty of danger is not required – only
knowledge of “substantial risk” is. Farmer, 511 U.S. at 834.
Certainly permitting an inmate to bring an object of some kind
onto the yard presented such a risk. Thus, a reasonable
10The record contains ample evidence regarding the
importance of this policy. See J.A. 191 (policy was enacted to
prevent inmates from throwing feces, weapons, and other objects
from cage to cage).
19
factfinder could conclude that Meade and Mullins must have
subjectively known that there was a substantial risk of serious
harm to Cooper or other inmates. 11
3.
Unlike Meade and Mullins, Halsey and Baird did not
participate in the inadequate search of Gleason before he
entered the yard. Indeed, the only evidence supporting
Strickland’s claims against Baird is her claim that Baird knew
about Gleason’s criminal history and threats to kill again. As
we have held above, mere knowledge of those threats does not
constitute deliberate indifference. Consequently, the district
court correctly granted summary judgment to Baird on the basis
of qualified immunity.
The district court also correctly held that Halsey is
entitled to qualified immunity. Strickland’s primary allegation
11In order to find liability, Meade and Mullins need not be
aware of a specific risk to Cooper when allowing Gleason to
bring an object onto the yard. Farmer, 511 U.S. at 843 (stating
that if officials are aware of a risk of inmate violence, “it
would obviously be irrelevant to liability that the officials
could not guess beforehand precisely who would attack whom”).
To meet the deliberate indifference standard, moreover, Meade
and Mullins did not have to enter into an agreement for the
purpose of harming Cooper. As the Supreme Court has noted,
deliberate indifference “is satisfied by something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Id. at 835.
20
against Halsey is that she saw Gleason with the rope from a
control room above the prison, yet did nothing to stop him. 12
Gleason testified that Halsey saw Gleason holding the rope.
J.A. 118 (“[B]ecause when she opened up that window I had it in
my hands. She could see it clear as day.”). Then, according to
Gleason, “[s]he looked down, that’s when they all looked up,
were inside talking and what not, and I pulled the rope up and
that’s when she shut window and never seen her again.” J.A.
118. Halsey denies seeing the rope or being in the control room
at all during the events that led to Cooper’s murder.
Although we must credit Gleason’s testimony and make all
reasonable inferences in Strickland’s favor, Gleason’s
statements about Halsey amount to mere speculation. A party
“cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another.”
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Here,
Gleason merely speculates that Halsey saw the rope on the
recreation yard. Of course, Gleason cannot know for sure what
Halsey saw. Strickland offers no other evidence supporting her
12
Tracy Ray, the Warden of Red Onion at the time, states
that although there is a control room overlooking this part of
the prison, there “is no ‘video room’ at Red Onion for purposes
of observing offenders on the recreation yard. The Intel Office
has access to live and recorded video footage; however, no staff
person is posted to monitor live videos.” J.A. 55; see also
J.A. 58 (similar statement by assistant warden at Red Onion).
21
claims about Halsey’s activities on the recreation yard. By
contrast, as to Meade and Mullins, as discussed above, Gleason
stated personal knowledge of an explicit agreement with them for
an insufficient search.
“Mere unsupported speculation . . . is not enough to defeat
a summary judgment motion.” Ennis v. Nat’l Ass’n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). Because
Strickland offers no other evidence about Halsey’s activities on
the recreation yard other than Gleason’s speculative testimony,
we will affirm the district court’s grant of qualified immunity
as to Halsey.
IV.
Having concluded that only Meade and Mullins violated the
Eighth Amendment, those two defendants “may nevertheless be
shielded from liability for civil damages if their actions did
not violate ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Saucier
v. Katz, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). 13 Consequently, we must determine
13The district court did not reach question because it
decided that Meade and Mullins did not violate Cooper’s
constitutional rights at all.
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whether Cooper’s Eighth Amendment rights were “clearly
established” at the time of his murder.
“[C]onduct violates clearly established law when, at the
time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable officer would have
understood that what he is doing violates that right.” Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation omitted).
But the court need not determine that the “very action in
question has previously been held unlawful.” Doe ex rel. Johnson
v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 176 (4th Cir. 2010)
(citation omitted). Indeed, “general statements of the law are
not inherently incapable of giving fair and clear warning, and
in other instances a general constitutional rule already
identified in the decisional law may apply with obvious clarity
to the specific conduct in question.” United States v. Lanier,
520 U.S. 259, 271 (1997).
That is the case here. Farmer applies with “obvious
clarity”: the case clearly establishes that the Eighth Amendment
protects prisoners from violence perpetrated by other inmates.
See Price v. Sasser, 65 F.3d 342, 346 (4th Cir. 1995) (stating
that “the law governing failure to protect [inmates] . . . was
unclear in some important respects” prior to Farmer). Other
circuits similarly agree that Farmer, and similar cases, clearly
established that the Eighth Amendment is violated when an inmate
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commits violence against another inmate. See, e.g., Cantu v.
Jones, 293 F.3d 839, 845 (5th Cir. 2002) (“[T]he constitutional
right of offenders to be protected from harm was clearly
established at the time of the attack.”); Bistrian v. Levi, 696
F.3d 352, 367 (3d Cir. 2012) (inmate “had a clearly established
constitutional right to have prison officials protect him from
inmate violence.”); Curry v. Crist, 226 F.3d 974, 977 (8th Cir.
2000) (“Prison inmates have a clearly established Eighth
Amendment right to be protected from violence by other
inmates.”).
Here, a reasonable officer would know that intentionally
violating prison policy by failing to strip-search an inmate,
pursuant to an agreement with that inmate, would put other
inmates at a substantial risk of serious harm. Consequently, we
reverse the district court’s grant of qualified immunity as to
Meade and Mullins and remand for further proceedings.
V.
For the foregoing reasons, the district court’s order
granting summary judgment to Defendants is
AFFIRMED IN PART;
REVERSED AND REMANDED IN PART.
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